Prosecutors confronting marijuana law’s challenges

ANNAPOLIS — A new law that will decriminalize marijuana in October involves some ambiguities that police and prosecutors are just beginning to confront.

Under the law, possession of rolling papers, pipes and other marijuana accessories will remain a criminal offense. This means a person caught smoking a joint technically could be arrested for the rolling paper but not the marijuana inside.

Also, fines are supposed to go up for anyone caught with the drug more than once, but Scott Shellenberger, the state’s attorney of Baltimore County, says it will be hard for police to establish whether a person has been charged before. Since marijuana possession will no longer be a crime, it will not show up in the criminal database.

Gov. Martin O’Malley signed the decriminalization bill into law on Monday morning. It will eliminate criminal charges for possession of less than 10 grams of marijuana and reduce the offense to the level of a traffic violation.

Sixteen other states have taken similar measures since the 1970s. It is distinct from the full-on marijuana legalization bills passed in Colorado and Washington.

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, the bill’s chief sponsor, said he intentionally left intact the criminal penalties for having marijuana accessories. He said it could help ensure that if police see marijuana accessories in someone’s car, they still have legal grounds to search the car for items like guns and heroin.

But it also creates a strange inconsistency. Republicans have suggested even a bag used to carry marijuana could still be cause for a criminal charge.

Zirkin said the legislature will consider eliminating those penalties next year.

Until 2012, Ohio’s law had the same discrepancy. Dan Riffle, a former Ohio prosecutor who now works for the Marijuana Policy Project, said each jurisdiction decided its own procedures. Stubborn police departments still arrested people for carrying marijuana pipes and papers. However, this happened less and less as the public became more supportive of decriminalization, Riffle said.

Shellenberger said Maryland’s prosecutors will send out guidelines for enforcing the new law. Every county could agree not to arrest people for carrying pot accessories. But the prosecutors’ association can’t force anyone’s hand, he said.

Shellenberger raised other ambiguities as well. Will marijuana cases go on courts’ traffic dockets or criminal dockets? What will be the standard of proof to make a marijuana charge stick? If police find several baggies of marijuana in a car, totaling more than 10 grams’ worth, can they aggregate them and issue a criminal charge?

The prosecutors sent O’Malley a letter last week, urging him not to sign the bill. They agree it was passed too hastily.

It’s hard to nail down how many people are arrested for marijuana possession each year. The American Civil Liberties Union found that in 2010, Maryland had the country’s fourth highest arrest rate for marijuana possession. Legal analysts have said the state had more than 19,000 marijuana cases last year. But in at least a small number of cases, the defendants were likely just given citations and never arrested.

Shellenberger said that most often, marijuana defendants are arrested but released immediately, without requiring a bail hearing.

Last year only 252 people were kept in jail for marijuana possession alone, according to data the Associated Press obtained from Maryland’s Administrative Office of the Courts.